Optus Data Breach – An earthquake whose effects are still being felt – Data protection

In the wake of the Optus data breach, amendments to the Telecom Regulations 2021 were introduced in October 2022. They enable telecom companies to disclose certain customer data to financial institutions (generally banks), the Commonwealth, and states and territories, in order to manage the risk of malicious cyber activities.

Other changes enable carriers to provide information to government agencies to help prevent fraud. The changes will be applied for 12 months, then the government will review them, without the need for parliamentary debate.

However, requesting personal information carries additional privacy considerations that government agencies should be aware of.

What can the government do under the amendments?

The amendments allow carriers to temporarily share certain government identifier information such as driver’s license, Medicare, and passport numbers with regulated, Commonwealth, state, and territory banks. Information may be requested to:

Prevent a cybersecurity incident, fraud, fraud activity, or identity theft Responds to a cybersecurity incident, fraud, fraud activity, or identity theft Responds to the consequences of a cybersecurity incident, fraud, fraudulent activity, or identity theft Addresses malicious cyber activity.

The regulations include safeguards to ensure that customer information is made available for the above purposes only. In addition, certain security requirements must be met, including that information or documents:

It must be stored in such a way as to prevent unauthorized access, or disclosure or loss must be disposed of when not required If not required for destruction, the entity must review its need to retain the information or document at least once every 12 months.

The provisions also allow the government agency requesting the information to share it with an associate company (for example, a related company or contractor), but only to the extent necessary for one of the purposes listed.

In addition, a written commitment must first be obtained from the partner on the same terms that the entity is required to provide for communications.

The government held extensive consultations across Commonwealth agencies, regulators, Optus, the banking sector, telecom companies and the Australian Information Commissioner when considering its approach.

This demonstrates a commitment to giving financial institutions the resources to further strengthen protection against financial crime, and justifies government agencies doing everything they can to support them in this endeavour.

Interaction with the Privacy Act

Banks must also comply with the Privacy Act 1988 and the Australian Privacy Principles (APP) when dealing with information from a carrier.

The Australian Information Commissioner’s Office says banks must still consider whether the information is reasonably necessary to their functions in accordance with APP 3.

In other words, they must have clear reasons for gathering information. In particular, if they can achieve the same results using information they already possess, or have other reasonable alternatives, it may not be reasonably necessary to request the information.

The Commissioner also stressed the importance of banks having strong and effective systems in place to ensure that information is used only for the purposes permitted by the regulations. A government agency dealing with a bank request for information may want to verify that such systems already exist.

Other considerations

ComputerWeekly, a media organization that reports on the IT industry, believes that organizations with robust data retention systems are well placed to deal with the latest regulations on a technical level, but may need to adapt some of their business practices.

In particular, she says, demand for systems that can automate record retention and destruction may increase.

Likewise, the increasing use of immutable storage — which prevents data from being changed or deleted — could complicate banks’ ability to comply with new regulations.

As responsible agents, government agencies must be aware of these considerations, and act accordingly—both to ensure that they, or those with whom they share data, are able to manage it in a way that is consistent with the new regulations.

Other proposed fixes

The federal government is considering reforms to privacy law, including increasing fines for violations, and whether entities should be allowed to retain data when the information is only needed to identify someone. These fixes should provide more much-needed protection to consumers, especially as data breaches are becoming more frequent.

However, in the wake of the Optus data breach, the question is whether more needs to be done.

The content of this article is intended to provide a general guide to the subject. It is advised to take the advice of specialists in such circumstances.

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